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decided: December 13, 1971.


Appeal from judgment and sentence of Court of Common Pleas of Montgomery County, Feb. T., 1970, No. 311, in case of Commonwealth of Pennsylvania v. John C. Bready, Jr.


Anthony J. Giangiulio, with him Frederick W. McBrien, III, and Bean, DeAngelis, Kaufman & Giangiulio, for appellant.

William T. Nicholas, First Assistant District Attorney, with him Stewart J. Greenleaf, Assistant District Attorney, and Milton O. Moss, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Hoffman, J. Jacobs, J., dissents.

Author: Hoffman

[ 220 Pa. Super. Page 158]

This is an appeal from the conviction of a District Justice of the Peace for violating Section 1301 of The Vehicle Code*fn1 by failing to report all fines and penalties to the Pennsylvania Department of Revenue.

At the conclusion of appellant's trial, appellant submitted points for charge which, in essence, would have instructed the jury that the Commonwealth had to prove beyond a reasonable doubt that appellant acted wilfully, intentionally, or out of a corrupt motive. The

[ 220 Pa. Super. Page 159]

    lower court refused to charge as requested, charging the jury as follows: "Members of the jury, the statute, the way it is drawn, admits of no exceptions. The statute says, and I will read it again: 'Sworn statements of all fines and penalties collected, and all bail forfeited shall be made by the Magistrate or other Officer imposing or receiving the same upon forms' -- and so forth.

"In other words, it's not a question of whether or not it was a mistake or an inadvertence, but whether or not the fines were all reported. As Mr. Giangiulio [appellant's trial counsel] says, it demands perfection, and indeed it does. Now, it is for you to determine the guilt or innocence of this defendant. Did he or did he not violate the terms and provisions of this section of the Vehicle Code."

Appellant contends that scienter or criminal intent is an essential element of the crime for which he was convicted, and that the lower court therefore erred in not so charging the jury. Section 1301 of The Vehicle Code, however, does not make any reference to intention or wilfullness. Noting this omission, the Commonwealth argues that the Legislature intended the statute to operate as a police regulation which would not require mens rea to sustain a conviction.

The question of whether criminal intent is an essential element of a statutory offense is a matter of statutory construction. Commonwealth v. Weiss, 139 Pa. 247, 21 A. 10 (1891). Whether or not a given statute is to be construed as requiring mens rea "is to be determined by the court by considering the subject matter of the prohibition as well as the language of the statute, and thus ascertaining the intention of the legislature." Commonwealth v. Schambers, 105 Pa. Superior Ct. 467, 471, 161 A. 624 (1932), quoting 16 C.J. 85.

[ 220 Pa. Super. Page 160]

In Commonwealth v. Koczwara, 397 Pa. 575, 155 A.2d 825 (1959), our Supreme Court considered the subject matter of statutes which do not require proof of criminal intent: "In recent decades . . . many states have enacted detailed regulatory provisions in fields which are essentially non-criminal, e.g., pure food and drug acts, speeding ordinances, building regulations, and child labor, minimum wage and maximum hour legislation. Such statutes are generally enforceable by light penalties, and although violations are labelled crimes, the considerations applicable to them are totally different from those applicable to true crimes, which involve moral delinquency and which are punishable by imprisonment or another serious penalty. Such so-called statutory crimes are in reality an attempt to utilize the machinery of criminal administration as an enforcing arm for social regulations of a purely civil nature, with the punishment totally unrelated to questions of moral wrongdoing or guilt. It is here that the social interest in the general well-being and security of the populace has been held to outweigh the individual interest of the particular defendant. The penalty is imposed despite the defendant's lack of a criminal intent or mens rea."*fn2 Commonwealth v. Koczwara, supra at 580.

[ 220 Pa. Super. Page 161]

In the instant case, the crime for which the appellant was convicted does not "come under police regulations [which] have for their purpose the improvement of social and moral conditions, the protection of health, etc." Commonwealth v. Unkrich, 142 Pa. Superior Ct. 591, 597, 16 A.2d 737 (1940); see Clem's Cafe Liquor License Case, 425 Pa. 94, 99, 227 A.2d 491 (1967). Therefore, since the "subject matter of the prohibition" does not indicate a legislative intent to dispense with the element of mens rea, we must turn to "the language of the statute" in order to determine that intent. The statute does not literally require a showing of guilty knowledge, but this is not dispositive.*fn3

Section 1301 of The Vehicle Code provides in relevant part as follows: "Penalty. -- Any magistrate or other officer, who shall fail to make such monthly reports and returns, or either of them, shall be guilty of a misdemeanor in office, and upon conviction thereof in a court of quarter sessions, shall be sentenced to pay a fine of five hundred dollars ($500.00) and costs of prosecution, or undergo imprisonment for not more than sixty (60) days, or suffer both such fine and imprisonment."

[ 220 Pa. Super. Page 162]

Act of April 29, 1959, P. L. 58, § 1301, 75 P.S. 1301.

It is apparent from the above that the Legislature did not intend Section 1301 to operate as a police regulation, punishable without proof of guilty knowledge. Appellant introduced evidence at trial which indicated that he was one of the busiest Justices of the Peace in the Commonwealth, and that he had part-time secretarial help responsible for his bookkeeping and clerical chores. It would be unconscionably harsh to subject any public officer to $500.00 fine, 60 days imprisonment, and removal from office, where a failure to report was the product of mistake or inadvertence.*fn4

If a legislature were to intend that a traditional crime could be proved without evidence of guilty knowledge, it would have to express that intent clearly. In Morissette v. United States, 342 U.S. 246 (1952), the defendant had been convicted of converting government property in violation of 18 U.S.C. § 641. The trial court ruled that the offense charged required no element of criminal intent. This ruling was upheld by the Court of Appeals, which concluded that the failure of Congress to express such a requisite effectively excluded intent as an essential element of the crime. The Supreme Court reversed: ". . . exhaustive studies of state court cases [do not] disclose any well-considered decisions applying the doctrine of crime without intent to . . . enacted common-law offenses, although a few deviations are notable as illustrative of the danger inherent in the Government's contentions here.

[ 220 Pa. Super. Page 163]

"The Government asks us by a feat of construction radically to change the weights and balances in the scales of justice. The purpose and obvious effect of doing away with the requirement of a guilty intent is to ease the prosecution's path to conviction, to strip the defendant of such benefit as he derived at common law from innocence of evil purpose, and to circumscribe the freedom heretofore allowed juries. Such a manifest impairment of the immunities of the individual should not be extended to common-law crimes on judicial initiative." Morissette v. United States, supra at 262-263.

The Legislature has described the crime for which the appellant was convicted as a "misdemeanor in office."*fn5 Misconduct, misbehavior, or misdemeanor in office was a common-law offense. Our Court, in Commonwealth v. Brown, 116 Pa. Superior Ct. 1, 175 A. 748 (1934), approved the following charge to the jury: "'[m]isconduct or misdemeanor in office, in its penal sense, is any act or omission in breach of a duty of public concern by one who has accepted public office, provided his act is wilful and corrupt and is not judicial.'" (emphasis added). If the Legislature "borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed. In such case, absence of contrary direction may be taken as satisfaction with widely accepted definitions, not as a departure from them." Morissette v. United States, supra at 263.

[ 220 Pa. Super. Page 164]

The Legislature, therefore, has not, by its omission of any reference to guilty knowledge, indicated any intention to eliminate mens rea as an element of the crime here charged.

The judgment of the lower court is vacated and the case is remanded for a new trial.


Judgment of sentence vacated and case remanded for new trial.

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